EPA case shows due-process need (EDIT)

Last week the U.S. Supreme Court handed down a rare 9-0 ruling in rebuking the Environmental Protection Agency. The justices found that an Idaho couple is entitled to challenge an agency order against them in federal court.

Chantell and Michael Sackett ultimately may lose their case. Still, the decision granting them a judicial review at this stage is a win for the right of due process guaranteed by the Fifth Amendment of the Constitution.

The Sacketts were constructing their dream home near Priest Lake, Idaho, when they got a compliance order from the EPA telling them to stop because their lot was on a federally protected wetland. They were told to restore the property by removing fill dirt, planting trees and shrubs, and keeping a fence around the lot for three growing seasons. Furthermore, they were threatened with fines of up to $75,000 a day until they complied.

Mr. and Mrs. Sackett argued that their property was not a wetland. They said it was not adjacent to a lake and was not "navigable waters" as defined by the Clean Water Act. That's the law giving the EPA authority to protect bodies of water and wetlands from pollution.

But the agency rejected their request for a hearing. Then a federal district court and a federal appeals court turned down their request for a review of EPA policies.

The EPA argues that the Clean Water Act doesn't require an agency appeals process — that the Sacketts would have to wait until the EPA issued a final compliance order and then sought to enforce it judicially. But that could have taken years, even while the big fines mounted every day.

The EPA also said the Sacketts could have avoided this mess by applying in the first place to the agency for a wetlands permit, but the Sacketts didn't think that was necessary. Besides, they say that could have cost them up to $200,000.

The high court — in one majority opinion and two separate concurring opinions — unanimously found something wrong with this setup. The majority opinion declared: "There is no reason to think the Clean Water Act was uniquely designed to enable the strong-arming of regulated parties into 'voluntary compliance' without the opportunity for judicial review."

So a neutral judge will hear the Sacketts' appeal. That doesn't mean they'll win their wetlands argument and be able to build their dream home. Nor does the high court offer relief to the many property owners who tangle with the EPA every year over wetlands rules — last week's ruling dealt narrowly with the Sacketts' case.

Justice Samuel Alito urged Congress to write laws to provide a more precise definition of EPA powers over "navigable waters.' He says the current law is "notoriously unclear." It's that way because of a three-way high court split on the issue in 2006 and because of expansive rule-making by the agency.

Lawmakers should heed Justice Alito's advice. Americans want their water protected from pollution, and the EPA has a crucial role to play. Even so, the agency's power should not be near-absolute, as sometimes seems to be the case now.

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